Cecere v. Geneva Enlarged City School District

84 A.D.2d 913, 449 N.Y.S.2d 452, 1981 N.Y. App. Div. LEXIS 16176

Opinion

Order affirmed, without costs. All concur, Cardamone, J. P., not participating, except Callahan, J., who dissents and votes to reverse the order and affirm the judgment of Geneva Small Claims Court, in the following Memorandum: I must respectfully disagree with the majority. As I view it, the rationale of the Court of Appeals, expressed in the Bethlehem Steel, Jones and Waldert cases (44 NY2d 831), which in each instance declared taxing statutes unconstitutional and ordered overpayments, where made, restored to the taxpayers, applies herein. The Geneva Enlarged City School District cannot validly claim lack of notice where a taxpayer pays taxes “under protest”. Such payment is actual notice that patent circumvention of constitutional limitations on their taxing powers would not be tolerated. It has long been recognized and established that where protest has been interposed, the school district is notified that it may be obliged .to refund the taxes and is required to meet that contingency (Mercury Mach. Importing Corp. v City of New York, 3 NY2d 418, 426; 43 NY Jur, Payment, §82). Therefore, those taxpayers who paid their taxes “under protest” are legally entitled to a refund (Angelone v City of Rochester, 72 AD2d 445, affd 52 NY2d 982). (Appeal from order of Ontario County Court, Reed, J. — refund of school taxes paid under protest — notice of claim.) Present — Cardamone, J. P., Callahan, Doerr, Denman and Schnepp, JJ.